Does a "collective rights" view of the Second Amendment breach Montana's contract for statehood?

The United States Supreme Court (herinafter "Court") will soon consider D.C. v. Heller,
on appeal from the D.C. Circuit Court of Appeals. The Court has
agreed to resolve the narrow issue of: “Whether D.C. laws violate
the second amendment rights of individuals who are not affiliated with
any state regulated militia, but who wish to keep handguns and other
firearms for private use in their homes.”

Although having narrowed the question under consideration, the Court
must necessarily decide whether the Second Amendment to the United
States Constitution secures an individual right to keep and bear arms,
or a collective right for states to arm their National Guards.

Viewing this question from the perspective of diverse citizens, the
current state of law is different, depending on where the citizen
lives. The various federal circuit courts of appeals have ruled
differently on this question, causing the Second Amendment to mean
something quite different for a person residing in San Diego,
California than it does for a person residing in San Diego,
Texas. To resolve this difference is at least part of what will
result from the Court's consideration of Heller.

About the facts in Heller much has been written. It is not necessary to reproduce that discussion here.

What is important here is that what the Court rules in Heller
will have import far beyond the narrow focus of the Court's declared
intent. The Court's ruling will have an impact on all states, and
upon all people living those states. It is the purpose of this
essay to disclose one considerable impact that may not be apparent
unless this argument is advanced to the Court.

Although the argument made here is specific to the State of Montana,
this argument may be valid for most, if not all, other states.

Synopsis of argument

A collective right interpretation of the Second Amendment by the Court
would breach Montana's Compact with the United States, a contract
entered into in 1889, a time when no authority seriously held a
collective right view and therefore no part of the intent of the
contracting parties.

Compact with the United States

When Montana entered into statehood, that event was accomplished via
the legal mechanism of the Compact with the United States, now
preserved at Article I of the Montana Constitution[1]. Other
documents which will enter into this discussion include the Organic
Act[2], the Enabling Act[3], Ordinance 1[4], and the Proclamation of
Montana statehood by president Harrison[5].

The only difference between a compact and a contract in any reasonable
usage of the terms as they apply here is that a compact is more
generally an agreement between or among states.

Montana's Compact shares many points in common with usual, bilateral
contracts. It includes competent parties, subject matter, legal
considerations, mutuality of agreement, and mutuality of obligation.

In this context, the term compact also has considerable overlap with
the term "treaty." For some aspects of consideration of the
effect of a compact, treaties are more nearly analogous, because
treaties are always between nations or states, or the treaty-making
authorities of nations or states. Further, treaties often
contemplate a longer time span than usual contracts, as does Montana's
Compact. Treaty defined: Black's, 1910[10]; and Bouvier's.
1856[11].

It is a bedrock principle of contract interpretation that contracts
must be interpreted so as to give credence to the intent of the
contracting parties. This principle is so well established as to
need no elaboration here. The same principle applies to
treaties. From Bouvier's Law Dictionary of 1914, "Treaties should
be liberally construed, so as to carry out the apparent intention of
the parties to secure equality and reciprocity between them; Geofroy v.
Riggs, 133 U.S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. When made
with an Indian tribe its words are to be construed as an Indian would
understand them; Jones v. Meehan, 175 U,S, 1, 20, Sup. Ct. 1, 44 L. Ed.
49." and "While they are to be liberally construed, they are to be read
in the light of conditions existing when entered into, with a view to
effecting the objects of the parties; Rocca v. Thompson, 223 U.S. 317,
32 Sup. Ct. 207, 56 L. Ed. 453."

Intent of the parties

When Montana entered into statehood and adopted the Compact as a part
of the Montana Constitution of 1889[12], included was a provision
guaranteeing the right to bear arms to "any person."[13]. The
right to bear arms reservation was at Article III, Section 13 of the
1889 Montana Constitution. This was exactly the same language as
used in the territorial Montana Constitution of 1884[14]. The
language was unchanged in the revision and readoption of the Montana
Constitution in 1972, with the RKBA provision being lodged at Article
II, Section 12[15].

To be clear, the wording of the right to bear arms reservation in the
Montana constitution is exactly the same today as it was in 1884, and
as it was in 1889 upon adoption of the Compact. This reservation
of right clearly and unambiguously contemplates an individual right for
"any person," language that simply cannot be respun to somehow mean a
right of state government. As the Montana Supreme Court has said,
the individual rights reserved by the people to themselves in the
Montana Constitution are specifically a direct bar to government
actors. (St. v. Long, 216 M 65, 700 P2d 153, 42 St. Rep. 643
(1985)) This is contradictory to a theory that when the people of
Montana reserved themselves this right they somehow meant to confer
authority to government actors.

Militia Act of 1903 was the beginning of the National Guard and
directed the federalization of the National Guard. "The National
Defense Act of 1916 … transformed the militia from individual state
forces into a Reserve Component of the U.S. Army - and made the term
'National Guard' mandatory".[16] Since the National Guard was not
invented or authorized until after 1900, there could have been no
understanding in 1889 that the purpose of the Second Amendment was to
authorize the states to arm the National Guard.

According to the Organic Act [2], the people of the Montana Territory were
required to devise a constitution that met certain requirements in
order for Montana to become eligible for statehood. Therefore,
Congress, acting as agent for the several states, had full opportunity
to review the proposed Montana Constitution as a result of passing the
Enabling Act (February 22, 1889)[3] that allowed Montana to become a
state. That is, Congress knew full well that the people of
Montana had reserved the right of "any person" to bear arms, and found
that reservation not inconsistent with the federal system and the
Second Amendment. "It is further to be observed that treaties are
the subject of careful consideration before they are entered into, and
are drawn by persons competent to express their meaning, and to choose
apt words in which to embody the purposes of the high contracting
parties." (Rocca v. Thompson, 223 U.S. 317, 32 Sup. Ct. 207, 56
L. Ed. 453.)

Further, before Montana was allowed statehood, and as a part of the
contract, the Montana territorial legislature, on behalf of the people
of Montana, was required to approve Ordinance 1[4]. In its fifth
paragraph, Ordinance 1 declared, " Fifth. That
on behalf of the people of Montana, we in convention assembled, do
adopt the constitution of the United States." This adoption was
on February 22nd, 1889. Certainly, the Second Amendment, in the
exact same verbiage as it occurs today, was a part of the "constitution
of the United States" that was adopted and accepted by Montana in 1889
via Ordinance 1.

In the proclamation of Montana statehood, by President Benjamin
Harrison, dated November 8, 1889[5], he specified that Montana had been
required to prepare and adopt a constitution that "not be repugnant to
the Constitution of the United States …" Further, he declared,
"Now, therefore, I, Benjamin Harrison, President of the United States
of America, do, in accordance with the provisions of the act of
Congress aforesaid, declare and proclaim the fact that the conditions
imposed by Congress on the State of Montana to entitle that State to
admission to the Union have been ratified and accepted and that the
admission of the said State into the Union is now complete." It
was accepted in contract that in Montana, "any person" had the right to
bear arms.

Conclusion

In 1889, Montana and the other several states entered into a contract -
struck a bargain. That contract was reduced to writing and is
found today as Montana's Compact with the United States and is recorded
at Article I of the Montana Constitution. In that contract, via
adoption of the corollary and required Ordinance 1, Montana adopted the
U.S. Constitution, definitely including the Second Amendment.
Congress and the President, acting as agents for the states, allowed
Montana into the union contingent upon Montana proffering an acceptable
state constitution. That constitution, as it was accepted by
Congress and the President, included the reservation of the right of
"any person" to bear arms, a clearly individual right maintained and
asserted today in exactly the same verbiage used in 1889.

There is no question that the contract into which Montana entered for
statehood was predicated upon an understanding that the people of
Montana would benefit from an individual and personal right to bear
arms, protected from governmental interference by both the federal and
Montana constitutions. That was the clear intent of the parties
to the contract.

Therefore, any holding that the Second Amendment merely gives the power
to the state to arm its National Guard would violate Montana's
contract, because it would be in conflict with the intent of the
parties of the contract at the time the parties entered into that
contract.

Some speak of a "living constitution," the meaning of which may evolve
and change over time. However, the concept of a "living
contract," one to be disregarded or revised at the whim of one party
thereto, is unknown. A collective rights holding in Heller would
not only open the Pandora's box of unilaterally morphing contracts, it
would also poise Montana to claim appropriate and historically
entrenched remedies for contract violation.

Endnotes

[1] Montana constitution, Article I: "All provisions of the
enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as
amended and of Ordinance No. 1, appended to the Constitution of the
state of Montana and approved February 22, 1889, including the
agreement and declaration that all lands owned or held by any Indian or
Indian tribes shall remain under the absolute jurisdiction and control
of the congress of the United States, continue in full force and effect
until revoked by the consent of the United States and the people of
Montana."

[6] Bouvier's Law Dictionary, 1839; "COMPACT, contracts. In its more
general sense, it signifies an agreement; In its strict sense, it
imports a contract between parties, which creates obligations and
rights capable of being enforced, and contemplated as such between the
parties, in their distinct and independent characters. Story, Const. B.
3, c. 3; Rutherf. Inst. B. 2, c. 6, 1. 2."

[7] Bouvier's Law dictionary, 1856; "COMPACT, contracts. In its
more general sense, it signifies an agreement. In its strict sense, it
imports a contract between parties, which creates obligations and
rights capable of being enforced, and contemplated as such between the
parties, in their distinct and independent characters. Story, Const. B.
3, c. 3; Rutherf. Inst. B. 2, c. 6, 1. 2. The constitution of the
United States declares that " no state shall, without the consent of
congress, enter into agreement or compact with another state, or with a
foreign power." See 11 Pet: 1; 8 Wheat. 1 Bald. R. 60; 11 Pet. 185."

[8] Webster's Unabridged Dictionary, 1884; "Com'pact, n.
[Lat. compactum, from compacisci, compactum, from com, for con, and
pacisci and pangere.] An agreement between parties; covenant or
contract; - either of individuals, or of nations.
"The law of nations depends on mutual compacts, treaties, leagues &c. Blackstone.
Wedlock is described as the indissoluble compact. Macaulay.
"Syn. See COVENANT."

[9] Black's Law Dictionary, 1910; "COMPACT. An agreement or
contract. Usually applied to conventions between nations or
sovereign states.
"A compact is a mutual consent of parties concerned respecting
some property or right that is the object of the stipulation, or
something that is to be done or forborne. Chesapeake & O.
Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1.
"The terms "compact" and "contract" are synonymous. Green v. Biddle, 8 Wheat. 1, 92, 5 L, ed. 547."

[11] Bouvier's Law Dictionary, 1856; " TREATY, international law. A
treaty is a compact made between two or more independent nations with a
view to the public welfare treaties are for a perpetuity, or for a
considerable time. Those matters which are accomplished by a single
act, and are at once perfected in their execution, are called
agreements, conventions and pactions."

[13] "Right to bear arms. The right of any person to keep or bear arms
in defense of his own home, person, and property, or in aid of the
civil power when thereto legally summoned, shall not be called in
question, but nothing herein contained shall be held to permit the
carrying of concealed weapons."